Landers v MIMIA
[2003] FMCA 223
•18 June 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LANDERS & ORS v MINISTER FOR IMMIGRATION | [2003] FMCA 223 |
| MIGRATION – Application for review of Migration Review Tribunal decision – change of circumstance to special need relative – whether demonstrated – whether applicant denied procedural fairness – failure of Migration Review Tribunal to bring to applicant’s attention the critical issue or factor upon which the decision was likely to turn – jurisdictional error. |
Migration Act 1958
Administrative Decisions (Judicial Review) Act 1977
Kanda v Government of Malaya (1962) AC 332
Romeo v Asher (1991) 29 FCR 343
Kioa v West (1985) 159 CLR 550
VAAC v MIMIA (2003) FCAFC 74
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Muin v RRT; Lie v RRT (2002) 190 ALR 601
Malik v MIMA (2000) FCA 562
Parra v MIMA (2000) FCA 85
Prasad v MIEA (1985) 6 FCR 155
Re: Minister for Immigration and Multicultural and Indigenous Affairs: ex parte Lam (2003) 77 ALJR 699
VAAC v MIMIA (2003) FCAFC 74
PlaintiffS157 v Commonwealth of Australia (2003) 195 ALR 24
NAFF of 2002 v MIMIA (2003) FCAFC 52
| Applicants: | CLIFFORD HAYSON LANDERS THERESE SUDHARSHINI LANDERS |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MZ 801 of 2002 |
| Delivered on: | 18 June 2003 |
| Delivered at: | Melbourne |
| Hearing date: | 3 June 2003 |
| Judgment of: | Walters FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Livermore |
| Solicitors for the Applicant: | Ambi & Associates |
| Counsel for the Respondent: | Mr Fairfield |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The decision of the Migration Review Tribunal made on 16 July 2002 be set aside.
The application be referred to the Migration Review Tribunal for further consideration.
All parties have liberty to make an application and written submissions in respect of costs within 7 days.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ 801 of 2002
| CLIFFORD HAYSON LANDERS THERESE SUDHARSHINI LANDERS CLERA SHADWERLYNE LANDERS CLEYON HAYSON LANDERS CLEYRON CLIFFORD LANDERS |
Applicants
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for review of a decision of the Migration Review Tribunal (“MRT”). The MRT handed down its decision on 16 July 2002. The application for review was originally filed on 9 August 2002. It came on for hearing (in its amended form) on 3 June 2003.
The general background facts were not in dispute, and are accurately set out in paragraphs 1 to 6 of the respondent's “Contentions of Fact and Law”. I adopt those paragraphs and incorporate them into this Judgment as follows:
The first applicant, Clifford Hayson Landers (“the applicant”), is a male national of Sri Lanka. The second applicant is his wife and the third, fourth and fifth applicants are their children.
The applicant, together with his wife and eldest child, entered Australia on 11 December 1995 as the holder of a Short Stay (Visitor) subclass 676 visa valid until 11 March 1996. On 1 March 1996, the applicant and his family were granted Sri Lankan (Temporary) (Class TT) subclass 435 visas valid until 31 July 1996. These visas were subsequently extended until 31 July 1997. On 11 April 1996, the applicant applied for the grant of a protection visa. However this was refused on 19 September 1996 and finally determined on 12 March 1997.
On 30 July 1997, the applicant applied for a further subclass 435 visa, however this was refused on 7 August 1997.
On 27 July 1998, the applicant lodged an application for a Change in Circumstance (Residence) (Class AG) subclass 806 visa with the respondent’s Department.
The applicant’s brother Victor Michael Landers is the nominator (“the nominator”). The applicant claims, relevantly, that he is required to provide assistance for the nominator’s son Lance Anthony Warren Landers born 25 July 1989, who it is claimed has an intellectual disability, language problems, visual disability and social and behavioural problems. The primary application also listed the nominator’s daughter Stacey Landers, born 27 February 1986, as a person requiring the assistance of the applicant.
On 7 February 2002, a delegate of the respondent refused to grant the visa. By application lodged 5 March 2002, the applicant sought review of the decision by the MRT. A hearing was conducted on 21 June 2002, at which numerous witnesses including the applicant and the nominator gave evidence.
As indicated above, the MRT’s decision was handed down on 16 July 2002.
MRT’s Decision — Factual Issues
The evidence before the MRT is summarised in paragraphs 11 to 31 of its decision.[1] The MRT's summary of the evidence before it was not in dispute and I therefore adopt the relevant paragraphs and incorporate them into this Judgment as follows:
[1] See Court Book pages 193 to 196
11. In his visa lodged on 27 July 1998 the applicant stated that his brother Victor (the nominator) has need for his assistance.
12.The nominator arrived in Australia as the holder of a Visitor Visa Class V12 on 22 December 1988. He was granted a Class 816 (special (permanent) entry permit (after entry)) on 10 November 1994 and became a permanent resident on that date.
13. The applicant stated that he is required to provide assistance to care for the nominator's son Lance, born 25 July 1989, who has an intellectual disability, language problems, visual disability and social and behaviour problems. The primary application also listed the nominator's daughter Stacey, born 27 February 1986, as a person requiring the assistance of the applicant.
14.Submitted with the visa application was a medical report, dated 16 June 1997 from Dr Paul Ful1arton, of the Developmental Disability Clinic at the Monash Medical Centre. This is a report in support of a claim by Mrs Rohini Landers for Child Disability Allowance from the Department of Social Security. Dr Fullarton states that Lance was first examined by him on 11 April 1991 when he was diagnosed with intellectual disability, language, social and behavioural problems. He states that Lance's disability commenced prior to 1991 and that he had a significant disability and that he required substantially more care and attention than a child of the same age without the disability.
15.A report from Lance's School of June 1997 states that "his behaviour is more frequently co-operative and appropriate and he has made gains in most other areas. Another school report of June 1998 states: “Lance has settled in well. His attention span has increased and he often tries very hard to please..”
16.The applicant submitted further documents including a letter from Dr P. Carter dated 2 April 1999, which states that Lance has attended the clinic regularly since 1995 and that he suffers from developmental delay and behavioural problems and that he needs very close and constant care and attention.
17.A report from Peter McCarthy, psychologist, from the Catholic Education Office, states that he assessed Stacey on 5 Apri1 2001. Stacey, then 15 years old and attending Killester College in year 9, is described as an apparently healthy girl of sturdy physique and a quiet, pleasant manner. Mr McCarthy states that she was functioning at the low end of the mild disability range and that these results were similar to those found by another psychologist in August 1995. Mr McCarthy also states: “Why such a severe deterioration in Stacey’s cognitive functioning seemed to have occurred between 1993 and 1995 and the deficit to have persisted is not clear.”
18.On 16 July 2001 Stacey was enrolled as a full time student at Emerson School which provides programs for primary and secondary students with mild intellectual disabilities.
19.The applicant lived in Noble Park whilst the nominator and his family lived in Narre Warren at the time of the primary application. At the date of the application for review the applicant had moved to Hampton Park whilst the nominator and his family remained in Narre Warren. On 18 February 1999 the applicant was given permission to work. On 19 November 1999 the nominator and his family departed Australia and returned on 19 January 2000. The applicant did not accompany them.
20.On 7 February 2002, the delegate refused the visa — on the ground that whilst the nominator's son did have a permanent or ongoing need for assistance because of a disability, prolonged illness or other serious circumstance within the meaning of clause 806.213 and regulation 1.03, the applicant did not provide substantial and continuing assistance to the nominator and his son.
21.The applicant lodged an application for review on 5 March 2002. He attached a written submission in which he states that he continues to provide support and care for the nominator's son; that the latest developments in the health of the nominator and his daughter have made it necessary to increase the care for the nominator's family in their hour of need. A further report from Dr Carter was attached and also reports from Lance's school. Dr Carter states that Lance suffers from autism and behavioural problems and that his mother cannot cope with the job of looking after him on her own.
22.A hearing was held on 21 June 2001 and oral evidence was given by:
Clifford Hayson LANDERS, the applicant;
Therese Sudharshini LANDERS, the applicant's wife;
Victor Michael LANDERS, the nominator;
Rohini LANDERS, the nominator's wife; and
Roweena De Silva, the nominator's sister-in-law.
The applicant was not represented. The child Lance LANDERS was present during the hearing.
23.The applicant told the MRT that from the time when he came to Australia in 1995 with his wife and child, he lived with the nominator and his family in Narre Warren until September 1996, when he moved to Noble Park. The child Lance, who was born on 25 July 1989, was at that time attending a special school every day from 9 am to 3 pm. After school he went to childcare until 3.45pm. The applicant said that he was helping by dropping his relatives at work and by picking up Lance from school. Lance had already been diagnosed with difficulties at that time. The applicant said that the report by Dr Carter of 16 June 1997 which states that Lance had been diagnosed in April 1991 with intellectual disability, language problems, visual difficulty and social behaviour problems and that his disability had commenced prior to 1991, was correct.
24.The applicant said that from the time they came to Australia in 1995 he and his wife Therese used to take care of Lance and Lance got quite close to Therese who was not working and had time to look after him.
25.The applicant said that Stacey who is now 16 years old has always been slow learning, but has a quiet and pleasant personality. She also needs help, which he provides by way of encouragement and she is developing more confidence.
26. The applicant said that he obtained permission to work in 1998 and at the time of his visa application in July 1998 he was working full time. He has been in full time employment since.
27.Therese LANDERS told the MRT that she started working in 1999 and is still in full time employment. She described her relationship with Lance as very close. She first met Lance when he had gone to Sri Lanka in 1995. It was clear to her when she came to Australia in December 1995 that he had special needs back then. She said she has a bond with the boy and knows how to handle him. She is like a second mum to him and looks after him with pleasure, as she knows that his family needs the help she provides.
28.Rohini LANDERS told the MRT that she has been in full time employment since 1991. Her hours at work are currently from 7am to 3.30pm. Her son Lance was born by Caesarean section and was a normal baby at birth. He walked by the age of one, but was falling all the time and had a squint. The child care nurse referred him to the Monash Medical Centre, where he was tested, but no abnormalities were found at that stage. He started talking at two years age. At age five he was referred back to the Monash Medical Centre, as he seemed to be developing slowly. He was then diagnosed as suffering from slow intellectual development. In 1995 he had speech therapy and prescribed activities to help in his development. In February 1995 he began school at Oakleigh Special Development School. He attended the creche after school, but staff told her he was hard to control. One day when she picked him up from there she found him tied to a chair.
29.She also told the MRT that the applicant changed his work shift in 2000 to a night shift from 8 pm to 4.30 am in order to be available during the day and be on call for Lance's school.
30.Her daughter Stacey, attended a normal school. In 2000 when she became depressed and was feeling the pressure of studying, she was diagnosed with schizophrenia and was on medication for eighteen months. She is no longer on medication. She received Child Disability Allowance for Stacey for a short period until she turned 16. She has also been in receipt of Child Disability Allowance for Lance.
31.Victor LANDERS told the MRT that he has been in full time employment since 1990. In 1996 after the family moved to Narre Warren, Lance went to Dandenong Valley School. In 1997 his paediatrician Dr Fullarton had recommended medication for Lance, but they did not accept that advice. He has now been on medication (Dexamphetamine) for three or four months.
MRT’s Decision — Conclusions
After reviewing the evidence before it, the MRT observed that, at the time that the visa application was lodged, Change in Circumstance (Residence) (Class AG) contained a number of subclasses, and that the only subclass in relation to which any claims had been advanced was subclass 806 — and then only in respect to the “special need relative” ground. There was no evidence to suggest that the applicant met key criteria for other subclasses or other grounds. The MRT continued:
34. Section 48 of the Migration Act (the Act) restricts the types of visas, which a non citizen can apply for if the non citizen is without a substantive visa and has previously been refused a visa, other than a bridging visa, for which he had applied. Section 48 of the Migration Act states:
48. A non-citizen in the migration zone who:
(a)does not hold a substantive visa; and
(b)either:
(i) after last entering Australia was refused a visa, other than a bridging visa, for which the non-citizen had applied (whether or not the application has been finally determined); or
(ii) held a visa that was cancelled under section 109 (incorrect information), 116 (general power to cancel), 134 (business visas) or 501 (special power to refuse or cancel);
may, subject to the regulations, apply for a visa of a class prescribed for the purposes of this section, but not for a visa of any other class.
35.The applicant had already applied for and been refused a visa, and did not hold a substantive visa at time of application, therefore under section 48 of the Act he could only apply for a visa of a class prescribed for the purposes of that section.
36.Regulation 2.12 prescribes those classes of visas, which include the subclass 806 visa.
37.Regulation 806.21 sets out the criteria which have to be satisfied at the time of application. Regulation 806.211 (b) states, in as far as it is here relevant, that, if the applicant is a person to whom section 48 of the Act applies, he must satisfy regulation 806.211(d) which requires that he or she has become a special need relative since last applying for an entry permit or substantive visa.
38.The applicant in this case last applied for a substantive visa on 31 July 1997. The issue is therefore whether in the period from 31 July 1997 to 27 July 1998 when he applied for the visa the subject of this application, he became the “special need relative” of the nominator. As this is a change of circumstances visa, a change of circumstances is required in the stated period.
39.The term 'special need relative' is defined in regulation 1.03…
40.It is not in dispute that the applicant in the relevant period of time, was nominated by his brother, who is a relative as that term is defined in regulation 1.03. The nominator is an Australian permanent resident.
41.In his application the applicant stated that his brother and his family needed to be cared for and, in particular, the nominator's son needed constant attention. He stated that his nephew is developmentally delayed and has a medical condition. This was documented in a report of Dr Fullarton of 16 June 1997 and several health and other professionals, including Dr P Carter, the family's general practitioner.
42.What is clear from the documentary evidence as well as from the open and honest evidence of all witnesses at the hearing, is that the condition of the nominator's son manifested itself and was clearly diagnosed as early as 1991. The nominator's need for assistance because of his son's developmental and behavioural problems began as early as 1991. The problems encountered by the family of the nominator due to their son's disability were evident when the applicant first came to Australia in December 1995. At that time both he and his wife began to provide as much assistance as they could by way of child minding, transport, help with homework and outings. To a minor degree they also assisted the nominator's daughter, especially with encouragement. Stacey's cognitive difficulties were also existent and assessed well before July 1997, as indicated in the report by P McCarthy.
43.The delegate found that the nominator's son has a disability within the meaning of regulation 1.03, but that the applicant did not provide substantial and continuing assistance at the time of the visa application.
44.The Tribunal notes that the assistance which the applicant and his wife provide to the nominator and his family, due to their son's needs and to a minor degree their daughter's needs, is valuable and much appreciated. However the Tribunal is not required and does not make any findings on whether such assistance meets the requirement of the regulation. This is because the decision in this matters turns on whether the circumstances changed in the period between July 1997 and July 1998, so that in that period the applicant became the special need relative of the nominator. (Emphasis added)
Application for Review — Preamble
It is clear from the above (and, in particular, from the passages bearing emphasis — being paragraphs 38 and 44 of the decision) that the MRT regarded “the issue” as “…whether in the period from 31 July 1997 to 27 July 1998 when (the applicant) applied for the visa the subject of this application, he became the ‘special need relative’ of the nominator”.
It is equally clear that, as a result, the MRT did not (and was of the view that it was not obliged to) make any findings on whether the assistance which the applicant and his wife provided to the nominator and his family met the requirement of the regulation.
It was not asserted by the applicant in the proceedings before me that the MRT misinterpreted or misapplied the criteria which must be met in order for the relevant visa to be granted. Similarly, the MRT's finding to the effect that the applicant was a person to whom section 48 of the Migration Act applies was not challenged. That finding is plainly correct.
It was not in dispute that subclause 806.211(d) imposed, in the case of the applicant, an additional criterion that, as at the time of the application, he had had “become…a special need relative…since last applying for an entry permit or substantive visa”.
The respondent argued that the effect of subclause 806.211(d) is as follows:
… the clear wording of clause 806.211(d) confirms that it is not enough for the applicant to satisfy the definition of, relevantly, “special need relative” within the relevant period. Additionally, as the MRT correctly reasoned…the applicant must “become” a “special need relative” within that period. In context, the word “become” must take its ordinary meaning, and impose, in context, two requirements, both of which must be satisfied. First, that at some time within the relevant period, the applicant must satisfy the definition of “special need relative”. Secondly, that the applicant must not have satisfied that definition immediately before the moment in time, within the relevant period, when he or she does so satisfy it.
Such an interpretation is clearly consistent with the legislative intent, disclosed from the name of the visa class, and there must be a “Change in Circumstance”, at some time during the relevant period, which would result in the applicant “becoming” a “special need relative”.
Application for Review — Grounds
In his application for review, the applicant relied upon two principal contentions:
a)The applicant asserted that the MRT failed to comply with the requirements of s.359A of the Migration Act, in that it failed to “…provide the applicant, by one of the means specified in s.379A of the Act (or at all), with particulars of information, namely that the applicant had applied for a substantive visa on 30 July 1997 and that in consequence, and to bring himself within the definition of special need relative, he had to show that he had become a special need relative between 27 June 1997 and 27 July 1998, which was the reason or part of the reason for affirming the decision under review”. In addition, the applicant asserted that the alleged failure to comply with s.359A arose from the MRT’s failure to ensure that the applicant understood why such information was relevant to the review, and to invite the applicant to comment on the information.
b)The second ground relied upon was as follows:
The decision of the (MRT) was made in breach of the rules of natural justice and/or the duty of procedural fairness in that the (MRT) failed to bring to the attention of the applicant the critical factor on which its decision was likely to and did turn, so that he had an opportunity of giving evidence and making submissions in respect of the issue.
Particulars
The Tribunal failed to bring to the attention of the applicant the fact that it intended to decide the review application against the applicant on the basis that he had not "become” a “special need relative” between 31 July 1997 and 27 July 1998.
For reasons which will become apparent, I shall deal with the second of the two grounds first.
Applicants’ Contentions
Mr Livermore on behalf of the applicants argued that the MRT denied the applicants procedural fairness by reaching its decision on the basis of a matter that was not drawn to the attention of the applicants, and about which they were not given the opportunity to give evidence or make submissions. That “matter” was the question of whether the applicant had “become” a special need relative between the time when he had last made an application for a substantive visa and when he made the application under consideration.
Mr Livermore referred to the letter dated 15 March 1999 from the Department to the first applicant[2], in which detailed information was sought regarding his claim that he was a special need relative.
[2] See Court Book page 105
The letter commences as follows:
I refer to your application for permanent residence made on 27 July 1998, which was made on the grounds of you being a special need relative to an Australian citizen or Australian permanent resident.
Quite clearly, no reference is made in the above paragraph to what Mr Fairfield, for the respondent, described as the “additional requirement” (for applicants to whom section 48 of the Migration Act applies). That requirement was, of course, to demonstrate that, as at the time of the application, the applicant had “become…a special need relative…since last applying for an entry permit or substantive visa”.
The letter gave clear and authoritative direction as to the material or information that the applicant was to present to the Department. It uses terms such as “you are required to provide further information to demonstrate…”, “the claim by your relative…should be supported by…”, “the report should provide all of the following information…”, “…your relative must also demonstrate to the Department…” and “…you must also provide evidence that…”.
The final two paragraphs of the letter are as follows:
You should provide the requested information within 28 days of the date of this letter. If you are unable to provide the above documents within 28 days, please provide within that period a written explanation giving an indication of the steps you have taken to obtain the information and the time you will need in order to supply them. Consideration will then be given to extending the 28 day period and you will be advised.
If you do not comply with this request or do not seek an extension of time from the Department within the 28 day period, a decision will be made on your application based on the material on hand. This may result in refusal of your application. A decision will be made on your application as soon as possible.
Notwithstanding the detailed nature of the information sought in the letter, there is no request for information regarding when or how the applicant “became” a special needs relative. The issue is simply not referred to.
The delegate’s decision to refuse to grant the visa was made on
7 February 2002[3]. It was from that decision that the applicant applied for review to the MRT.
[3] See Court Book pp 126-36
Although the delegate recorded that “…this application was made in Visa Class AG Change in Circumstance (Residence) [4]…”, and noted that the applicant fell within the scope of section 48 of the Migration Act[5], the issue of whether the applicant had “become” a special need relative since last applying for an entry permit or substantive visa was never referred to. Indeed, and as Mr Livermore pointed out, the chronology set out in the delegate’s decision does not even include the date upon which the applicant had last applied for a substantive visa ¾ being 30 July 1997.
[4] See Court Book pp 127 and 135
[5] See Court Book page 128
Mr Livermore argued that neither the Department nor the MRT raised the issue of whether the applicant had “become” a special needs relative during the relevant period at any time prior to the handing down of the MRT’s decision on 16 July 2002. Relevantly, Mr Livermore stressed that the applicant’s attention was not drawn to the issue in any of the correspondence that he or his legal advisers received, and that it was not raised with the applicant when he gave evidence on oath at the hearing before the MRT on 21 June 2002.
There can be no doubt that this issue was the critical factor on which the MRT’s decision turned. That is abundantly clear from paragraph 44 of the MRT’s decision[6].
[6] See Court Book page 198
Mr Fairfield was unable to identify any document in which the factor upon which the MRT’s decision clearly turned was brought to the attention of the applicant or his legal advisers prior to the handing down of its decision on 16 July 2002. The only reference to the subject that Mr Fairfield was able to identify appears on page 4 of the transcript of the proceedings which took place before the MRT on
21 June 2002. I note that the transcript provided to this Court comprises 31 pages, and deals with part only of the proceedings before the MRT. It records the first part of those proceedings.
The applicant was not represented at the hearing before the MRT on
21 June 2001[7].
[7] See Court Book page 195
The passage referred to by Mr Fairfield is as follows:
MRT: Now, by way of background, let us just recapitulate over a couple of technical points. You applied for the special need relative visa in 1998 - July 1998.
Applicant: That is right, July. Yes, that is right.
MRT: Your previous visa application had been in July ’97.
Applicant: ’97, yes.
MRT: And that was rejected in August ’97.
Applicant: Yes, that was the ---
MRT: 435.
Applicant: 435, that is right, yes.
MRT: Okay. So at the time when you applied to be a special need relative ---
Applicant: Yes.
MRT: ---you did not hold a substantive visa. You didn’t have a visa except a permit to be here.
Applicant: Yes, that is right, yes.
MRT: Okay. Now – so we have to look at that period between July ’97 and July ’98 to see if there was a change in circumstances.
Applicant: All right.
MRT: Because that is the category of visa that your application comes under.
Applicant: Okay.
MRT: All right?
Applicant: Yes.
MRT: So that is by way of background. Now, would you like to tell me what is relevant in this newspaper?
Mr Livermore argued that the MRT breached the rules of procedural fairness by not identifying and giving the applicant an opportunity to comment upon the reasons for its proposed adverse finding. It was asserted that, without knowledge of the critical issues around which a decision will turn, a person affected by the decision will be left in the dark — deprived of a full and fair opportunity of presenting a case in his own interest.
In support of the above propositions, Mr Livermore referred to the well known passage from Lord Denning’s Judgment in Kanda v Government of Malaya (1962) AC 332 at 337:
If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him: and then he must be given a fair opportunity to correct or contradict them.
Although Lord Denning’s comments refer to criminal proceedings, they have found a home in administrative law. In discussing what has been described as the “hearing rule”[8] — being one of the two traditional rules of natural justice[9] — the authors of Judicial Review of Administrative Action[10] wrote (under the heading “Notice”):
Since the purpose of notice is to enable participation, the content of the notice must be such as to allow its recipient to participate fully and effectively in whatever manner is to be found to be appropriate in the circumstances of the particular case…
Naturally, the notice must advise the time, date and location of any hearing, or the closing date and place for lodgment of written submissions. Beyond that, the major requirement is to notify the subject matter and potential consequences of the proposed decision. This requirement is most stringent in cases where an individual is threatened with serious deprivation if some fault of misconduct on the part of that individual is established. In that context the analogy of criminal proceedings, although than no more than an analogy, will tend to suggest that the notice must be adequate to allow the individual to prepare and mount an adversarial defence…
At the heart of the court’s approach to the content of notice is the well known proposition of Lord Denning that, if a right to be heard is worth anything, it must carry with it the right to know the case that has to be met. The fundamental requirement is that notice should alert the recipient to the kinds of issues which need to be addressed, and provide the information necessary to allow the manner of participation required to be afforded.[11] (Emphasis added, and footnotes omitted)
[8] Better known as audi alteram partem
[9] The other being “the bias rule” — nemo debet esse iudex in propria sua causa
[10] Judicial Review of Administrative Action (second edition) by Aronson & Dyer — LBC Information Services 2000
[11] Judicial Review of Administrative Action (see above) at pp 409-10
Mr Livermore’s submissions also relied upon passages from the dissenting Judgment of Burchett J in Romeo v Asher (1991) 29 FCR 343 at 358-9, where reference is made to Lord Denning’s statement and to the equally well known passage from the Judgment of Mason J in Kioa v West (1985) 159 CLR 550 at 587:
…Recent decisions illustrate the importance which the law attaches to the need to bring to a person’s attention the critical issue or factor on which the administrative decision is likely to turn, so that he may have an opportunity of dealing with it.
The concept was expressed slightly differently by the Full Court of the Federal Court in VAAC v MIMIA (2003) FCAFC 74, at paragraph 27:
It is well established that the rules of natural justice require that a decision-maker bring to an applicant’s attention the critical factor on which the decision is likely to turn so that he or she may have an opportunity of dealing with it: see Kioa v West (1985) 159 CLR 550 at 587; Broussard v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472 at 481; and Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal and Torres Strait Island Affairs (2000) 103 FCR 539 at 557 and the cases there cited.
Discussion
Mr Fairfield argued that the principles described above could have only limited application in proceedings such as those the subject of the present application. He argued that the MRT is “not required to make the applicant’s case for him”.
Mr Fairfield emphasised that the MRT is not in the position of a contradictor, and referred to the following passages from Abebe v Commonwealth of Australia (1999) 197 CLR 510:
The want of procedural fairness was said to lie in the tribunal not putting to the applicant any suggestion that her story of detention and rape was untrue. Framed in this way, the submission made, perhaps, assumed that proceedings before the tribunal are adversarial rather than inquisitorial or that in some way the tribunal is in the position of a contradictor of a case being made by the applicant. Such assumptions, if made, would be wrong. The proceedings before the tribunal are inquisitorial and the tribunal is not in the position of a contradictor. It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well founded fear of persecution for a convention reason. The tribunal must then decide whether that claim is made out.[12]
…The tribunal in undertaking its essentially investigative function is not obliged to put, as an adversary in adversarial proceedings might be bound to do, in respect of each and every key matter, an assertion of apparent falsity or unreliability.[13]
[12] Abebe v Commonwealth of Australia at page 576, per Gummow and Hayne JJ
[13] Abebe v Commonwealth of Australia at page 608, per Callinan J
Similar statements were made in Muin v RRT; Lie v RRT (2002) 190 ALR 601.[14] Of significance, in my opinion, is McHugh J’s description in Muin of the legal framework within which the Refugee Review Tribunal (“RRT”) operates:
…Section 420 of the (Migration) Act declares that the tribunal is to pursue the objective of providing a mechanism of review that is “fair, just, economical, informal and quick”. Further, in reviewing a decision, the tribunal “is not bound by technicalities, legal forms or rules of evidence” but must act “according to substantial justice and the merits of the case”.
Procedure in the tribunal is inquisitorial and not adversarial. A member is not a party to the proceedings, nor a contradictor to the applicant’s claim…
In addition to its specific statutory functions and duties, the tribunal is under an overriding duty to accord procedural fairness to applicants…[15]
[14] at paragraph 7 (per Gleeson CJ), paragraph 98 (McHugh J) and paragraph 208 (per Kirby J)
[15] Muin v RRT at paragraphs 97 to 99
I note that section 353 of the Migration Act is in identical form to section 420 of the Act. The former deals with the MRT’s way of operating. The latter, of course, deals with the RRT's way of operating.
Mr Fairfield also referred to passages from Malik v MIMA (2000) FCA 562[16], Parra v MIMA (2000) FCA 85[17] and Prasad v MIEA (1985)
6 FCR 155[18]. These passages confirm — in various ways — that it is no part of the RRT’s (or the MRT’s) function to make good a case claimed by the applicant. In Parra, for example, Wilcox J added:
Still less would it be part of a tribunal’s function to make good a case which the applicant has not articulated, only because there is some evidence of elements of a claim.
[16] at paragraphs 18 to 22
[17] at paragraph 13
[18] at page 169-70
I note that the three decisions referred to in the previous paragraph are all (single Judge) decisions of His Honour Justice Wilcox. The comments in the first case (Malik) were in the context of his Honour’s discussion of the meaning and effect of section 359A of the Migration Act and, in my opinion, are not directly relevant to the procedural fairness issue raised by the applicant in the case now before me.
In the second case (Parra), His Honour was considering whether a “mere suggestion” of the existence of evidence in relation to elements of an alternative (unarticulated) basis of claim would be “…enough to enliven the tribunal’s obligation, as an inquisitor, to investigate the existence of the other elements.” His Honour concluded that something akin to a prima facie case would be required before the tribunal could properly take such a step. Again, the issue of procedural fairness was not raised directly.
In Prasad, His Honour’s comments were obiter[19]. His Honour was dealing with an argument to the effect that the relevant tribunal’s decision was invalid because it was so unreasonable that no reasonable person could have exercised the power reposed in him/her in such a way (see section 5(2)(g) of the Administrative Decisions (Judicial Review) Act). His Honour concluded that a power is exercised in an improper manner if, upon the material before the decision-maker, it is a decision to which no reasonable person could come. His Honour continued:
Equally, (the power) is exercised in an improper manner if the decision-maker makes his decision — which perhaps in itself, reasonably reflects the material before him — in a manner so devoid of any plausible justification that no reasonable person could have taken this course, for example by unreasonably failing to ascertain relevant facts which he knew to be readily available to him. The circumstances under which a decision will be invalid for failure to inquire are, I think, strictly limited. It is no part of the duty of the decision-maker to make the applicant’s case for him. It is not enough that the court finds that the sounder course would have been to make inquiries. But, in a case where it is obvious that material is readily available which is centrally relevant to the decision to be made, it seems to me that to proceed on a decision without making any attempt to obtain that information may properly be described as an exercise of the decision-making power in a manner so unreasonable that no reasonable person would have so exercised it. (Emphasis added)
[19] see the third paragraph on page 167 of the Report
Once again, in Prasad, His Honour was not dealing with an argument relating to breach of procedural fairness.
In my opinion, none of the three decisions (Malik, Parra and Prasad) are of assistance in determining the procedural fairness aspect of the application now before the Court. I note from the passage bearing emphasis in the extract from Prasad set out in paragraph 39 above, however, that in certain circumstances it may indeed be proper for a decision-maker to assist in the “making” of an applicant’s case.
I would add that, in my opinion, the inquisitorial nature of the proceedings before the MRT may well deny to that body the relative luxury of being able to observe and pass judgment upon the applicant’s case with the same degree of detachment as that which characterises adversarial proceedings (and, particularly, adversarial proceedings in a court of law).
It may well be true that the MRT cannot and should not be compelled to invite an applicant to supply evidence that may be necessary to “make good a case” that he has advanced before it, but the statutory obligation imposed on the MRT by section 353 of the Act is to act “according to substantial justice and the merits of the case”. Further, the MRT must “pursue the objective of providing a mechanism of review” that is fair and just (amongst other things). Not only is the MRT not a contradictor, but there is no contradictor of any sort. It follows that the opportunities for an applicant to have his attention drawn to a substantial, potentially fatal, flaw in his case are extremely limited. The problem faced by the applicant in the present case was not necessarily an absence of evidence in relation to an element of his case, but an obvious failure to focus on the critical issue upon which the decision itself would inevitably turn.
The MRT’s approach to the matter appears to have been to allow the applicant to lead detailed — and persuasive — evidence of his likely status as a special need relative. The MRT inquired into and tested that evidence in an entirely appropriate manner. In so doing, however, and whether wittingly or unwittingly, it effectively diverted the applicant’s attention away from the critical factor on which the decision had to turn, and gave him no opportunity of dealing with it in any real or practical sense. The applicant appeared before the MRT without legal representation, and the few sentences from the transcript to which Mr Fairfield referred[20] did nothing — in my view — to warn the applicant of the overwhelming significance of the issue. Indeed, it is fair to conclude that the MRT, by bracketing the comments with the expression “by way of background”, and by describing them as “technical points”, inappropriately minimised the issue in the mind of the applicant at that time. The contents of the letter dated 15 March 1999 from the Department[21] and the manner in which the matter was dealt with by the delegate[22] simply reinforce the view that the applicant had been conditioned (as it were) to focus on issues other than the specific issue upon which the MRT determined that its decision should turn.
[20] see paragraph 26 above
[21] see paragraphs 14 to 19 above
[22] see paragraphs 20 and 21 above
The passages from Kioa v West and VAAC v MIMIA to which I have referred[23] underline the need to bring to a person’s attention the “critical issue” or “critical factor” on which an administrative decision is likely to turn. The MRT cannot and should not “lie doggo” (to use a colloquialism), and fail or refuse to draw the applicant’s attention — clearly and directly — to the core or ultimate issue upon which it considers that the entire decision must necessarily turn. In my opinion, that is what the MRT did.
[23] see paragraphs 30 and 31 above
The applicant could also have argued that the combined effect of the factors referred to in paragraph 44 above gave rise to a legitimate and recognisable form of expectation on his part that the real and substantial core issue for determination by the MRT was not whether the applicant had “become” a special need relative during the relevant period, but whether he was a special need relative at all. In this regard, and as noted above, the opening and closing comments of the tribunal member appearing in the extract referred to in paragraph 26 above reveal that the reference to “change in circumstances” was made “by way of background” only.
An expectation such as that referred to in the preceding paragraph could not, of itself, lead to a conclusion that the procedure adopted by the MRT was unfair and that a breach of the rules of procedural fairness had occurred. These concepts were considered by the High Court in Re Minister for Immigration and Multicultural and Indigenous Affairs: ex parte Lam (2003) 77 ALJR 699. In Lam, the High Court emphasised that the existence of a legitimate or reasonable expectation could not, of itself, found a claim for relief. It is necessary to show actual unfairness.
If the procedure adopted by the MRT was fair, then “…reference to expectations, legitimate or not, is unhelpful, even distracting”[24]. That said, the existence of a subjective expectation — and reliance upon that expectation — may result in unfairness:
Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice[25].
[24] see Lam at paragraph 111 (per Hayne J)
[25] see Lam at paragraph 34 (per Gleeson CJ)
To the extent that it may be necessary or of assistance for me to do so (and bearing in mind that any reference to expectations may be unhelpful or distracting), I find that the process signposted by the various factors to which I have referred in paragraph 44 above gave rise to a subjective, but legitimate and understandable, expectation in the mind of the applicant that the real or critical core issue or factor on which the MRT’s decision was likely to turn was the question of whether or not he was a special need relative during the relevant period, and not the change of circumstances already referred to. I find that the applicant relied upon that expectation, and that the practical effect of that factual scenario or matrix was that the procedure was unfair to such an extent as to cause an injustice to the applicant.
I find that, for the reasons that I have given above, the MRT denied the applicant procedural fairness.
Jurisdictional Error
The consequences of a finding such as that described in the previous paragraph were summarised by the Full Court of the Federal Court in VAAC v MIMIA (2003) FCAFC 74[26]:
It is … now established by Plaintiff S157 v Commonwealth of Australia (2003) 195 ALR 24 that section 474 does not protect a purported decision made as a result of jurisdictional error. A failure to accord procedural fairness constitutes jurisdictional error: Re Refugee Review Tribunal: ex parte Aala (2000) 204 CLR 82 per Gleeson CJ at 89, per Gaudron and Gummow JJ at 101, per Kirby J at 135 and per Hayne J at 143.
[26] see paragraph 31
I refer, as well, to the following passages from PlaintiffS157 and Aala:
(The High Court) has clearly held that an administrative decision which involves jurisdictional error is “regarded, in law, as no decision at all”. Thus, if there has been jurisdictional error because, for example, of a failure to discharge “imperative duties” or to observe “inviolable limitations or restraints”, the decision in question cannot properly be described…as “a decision…made under (the Migration) Act”[27].
The duty to accord procedural fairness…is a fetter upon the lawful exercise of power. The decision-maker may affect the rights of (a party) if and only if that party is accorded procedural fairness. That is, putting the matter in terms of jurisdiction, the authority to decide is an authority which may be exercised only if procedural fairness is extended[28].
[27] (2003) 195 ALR 24 at 45
[28] Re: Refugee Review Tribunal & Anor (exparte Aala) (2000) 204 CLR 82 at 143 (per Hayne J). See also pp 89 (per Gleeson CJ), 101 (per Gaudron and Gummow J) and 135 (per Kirby J)
The findings that I have made in the present case are unaffected by section 357A of the Migration Act. That section establishes a statutory code of procedure to be followed by the MRT — but it only applies to applications made to the MRT after the date of the commencement of the section. The section commenced on 4 July 2002. The application for review in this case was made in March 2002[29].
[29] see Court Book page 140-149
In NAFF of 2002 v MIMIA (2003) FCAFC 52, Lindgren and Stone JJ (neither of whom were members of the Full Court which decided VAAC) said:
It is not in dispute that natural justice requirements applied to the tribunal’s review of the delegate’s decision, or that a denial of natural justice by the tribunal may result in a decision being made in excess of jurisdiction…Once a non-observance of (the requirements of natural justice in the particular circumstances of a case) is established, it is only if it is positively concluded that observance of the requirements “could not possibly have produced a different result” that the decision impugned will allowed to stand: see Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145 per Mason, Wilson, Brennan, Deane and Dawson JJ; Aala at 88 per Gleeson CJ, 116-117 per Gaudron and Gummow JJ, 122 per McHugh J, 130-131 per Kirby J, 154 per Callinan J[30].
[30] see paragraph 31
Mr Fairfield submitted that even if a breach of the rules of procedural fairness had occurred, it could not have affected the outcome of the proceedings before the MRT. A conclusion to the effect that compliance with the requirements of procedural fairness could not have made any difference to the ultimate result, however, is likely to be a rarity[31], and although the MRT found that the applicant did not “become” a special need relative of the nominator during the relevant period[32], that finding was made in the atmosphere of injustice and unfairness already referred to and described in these Reasons.
[31] see Aala (supra) at paragraph 131, per Kirby J
[32] see paragraphs 42 and 45 of the MRT’s Decision, on pages 197 and 198 of the Court Book
In all the circumstances, I am unable to conclude that observance of the requirements of procedural fairness could not have produced a different result. I can only but guess at the type and quality of evidence that the applicant might have placed before the delegate and/or the MRT if his attention had been properly drawn to the significance of the issue. That is a path down which I am not prepared to proceed. In my opinion, once a denial of procedural fairness has been demonstrated, it is for the respondent to satisfy the court of the inevitability of the original result. There is no onus on the applicant to show that a different result would have followed. This is so because the MRT’s decision ¾ infected, as it is, with jurisdictional error ¾ is no decision at all. Prima facie therefore, the applicant is entitled to have his application re-heard according to law.
Conclusion
As foreshadowed in paragraph 11 and 12 above, I do not propose to deal with the first of the two grounds relied upon by the applicant. He is entitled to succeed on the second ground.
I propose to order that the matter be referred back to the MRT for further consideration.
I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Walters FM
Deputy Associate: Rebecca Young
Date: 18 June 2003
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